Construction News

There is not one jurisdiction in Australia where building surveyors are required by law to be audited annually. Yet building surveyors perform the most critical role of any building practitioner under the building regulations, save for the builder who has to ensure that the building is built to both last and be fit for occupation.

It follows that legislation must have in place strong probity regimes designed to ensure that building surveyors do indeed abide by the public good imperative. This imperative is not indigenous to Australia and on point is the fact that three years ago I was invited by the Japanese Government to participate in a think tank that was invested with the responsibility of reviewing and overhauling Japanese building regulations.

The review was born of a controversy to do with a number of buildings where the engineering had been brought into question. My retainer was to advise on how to best improve the probity belts and braces that governed building control and the inspectorial regime.

One of my key recommendations was that auditing of certifiers had to be mandatory and annual, only to be informed that by the Japanese luminaries who stated that they had made auditing of building surveyors both mandatory and an annual requirement some years prior.

It is the building surveyor’s statutory duty to ensure that buildings are fit for occupation, and where there is evidence of recalcitrance on the part of building practitioners and owners, the legislature expects the building surveyors to issue enforcement notices and orders.

A building surveyor is very much like a regulatory policeman, there to police regulatory compliance. Although the building surveyor is not charged by law with the responsibility of guaranteeing all aspects of build quality, he or she must discharge his or her statutory obligations and ensure that the practitioners under his or her watch do likewise.

The building surveyor’s statutory mandate is so critical, it follows that high levels of probity have to surround the discharge of their statutory duties. It is expected that those duties are discharged impartially, professionally and in a fashion that always has the public top of mind.

When it comes to protecting the public or the consumer, it’s best to prevent or avoid the occasioning of misfortune rather than to react to misfortune once it has materialised. Those who fashioned compliance and probity regimes for lawyers understood this. If one applies the tried and true, the only way the legislature can best ensure this is to make auditing mandatory. So building policy makers need to look to the legal fraternity statutory compliance regime as a benchmark if they want to increase the probity standards of in the building industry.

Policy architects, however, are often hamstrung by the bean counters in Treasury, particularly those in the post-GFC world who are invariably ill disposed to such notions. They will say cash strapped building control regimes can’t afford to underwrite an army of auditors.

Well, they don’t need to, because if they use the legal fraternity regime as a template, they will find that the legal fraternity adopts a user pays system in that law firms that have to pay independent auditors whom are nominated by the Law Societies. The auditors carry out at least two audits a year (one of which occurs without notice) and audits the books. If everything is in order, which is generally the case, the auditor gives the law firm a clean bill of health. If the diagnosis is not so good, the auditor informs the Law Society of this fact and the ante is upped.

Australian state and territory building regulatory jurisdictions could similarly accredit a panel of auditors, and the Building Acts could be amended to make auditing mandatory, annual, arms length and user pays. If this regime is introduced, recalcitrance can be identified before the damage is done, rather than maintaining the complaint driven status quo that only finds expression when the damage is done.

This innovation would in a macro sense lower the mercury on the misery barometer and would without a doubt improve the quality of the as built product in a profoundly positive sense.

Comments

Subtlety, there is the ability to audit building surveyors in every jurisdiction the point of the article is that the regime is not mandatory in contradisdinction to the legal fraternity where it is mandatory. This is the central point and message in the article.

Good morning,
I completely concur with Kim's article. As a major stair nosing manufacturer we visit many dwellings in Sydney and Melbourne. The main non compliant builders specialize in large residential developments. The ABCA don't have the resources to perform inspections. Rather they expects evidence to be presented before a long roundabout process is instigated.

The notion of a user pays model as above is indexed with a post GFC paradigm; governments are challenged in terms of matters such as budget repair and cannot in the current deflationary environment, where tax receipts are far less than in the commodities boom easily ramp up new forms of expenditures. A compulsory auditing regime is very expensive in terms of the public purse, so in an era of fiscal constraint one needs to look for alternative ways to fund vital functions such as auditing. One of the reasons for the Latvian supermarket roof floor collapse a couple of years ago, that killed so many people, was the disbanding of the national building inspectorate. This was due to post GFC austerity measures. When budgets are challenged and Treasury bean counters and expenditure committees are having to balance the books, the task cannot be underestimated as there are many competing and pressing expenditure priorities, not the least of being welfare commitments for the needy and the vulnerable along with other vital services that keep everything ticking over, such as the police force, hospitals and so forth. But a user pays model is a best of both worlds scenario, the probity controls are improved absent reliance upon additional financial impost upon government or treasury departments. Its all too easy to criticise government for perceived shortcomings in terms of resource funding and allocation, this achieves little. Floating solutions that can help government solve macro dimension problems has a better chance of getting lift off. The user pays model has worked for the legal sector and its clients and consumers for 'eons', it would be pretty easy to migrate to another sector.

The building surveyor is like the goal keeper with regard to eliminating poor building quality or inferior materials – they are the last line of defence.

Whilst we must accept that building surveyors cannot be expected to pick up all shoddy materials/workmanship which goes in up the line, there must also be a quality assurance regime to ensure that our last line of defence is up to scratch and that our goal-keepers are functioning effectively.

KIm, I am in agreement. It is a no-brainer that 'certifiers' charged with responsibility to 'certify' buildings (at least to a level to be fit to 'occupy') should be audited and frequently. And I would add, pie in the sky, that the reckless should be punished! Whether the OP should only require a building to be to the level of suitability for 'occupation' is an entirely different matter for another time. In relation to cost being a deterring factor to auditing for 'compliance', I do not think that is the issue. Rather the 'no touch regulatory' culture subscribes to a policy and practice of' 'no consequences' for misconduct, no matter how serious the damage caused to owners or how frequently the recalcitrance. There is NO WILL to make any persons in building accountable and NO punishment – hence NO deterrence. As for real reform, the most recent Vic legislation has been enacted to reduce 'consumer protection' – increasing the misery barometer – this indicative of the fact that there is no commitment to improving the lot of consumers. Clearly, the driving policy force is to 'control' consumers and 'not control' certifiers, or anyone else in the business of building. Had there been any intention to improve consumers' lot, then genuine consumers would have been consulted, represented and their views heard. However, in stark contradiction, consumers were excluded and remain so, very effectively rendered non-entities, voiceless and powerless – only of value as 'cash cows'! As for the built environment, like the seriously damaged consumer class, there is no interest in defective, dangerous buildings. The whole scheme has been contrived as a scam and to ignore every issue except how best to increase growth and business profit.

Anne I am of the view that policy makers are intent on improving the lot of the public. It is a complex process and yes you are right about consultation with key interest groups being absolutely critical. If the auditing resources of the departments locally and abroad can be complemented and boosted by additional user pays funded auditors it will help all. I think that the policy makers are well intentioned and sensitive to the plight of consumers so I'm at odds with the notion of there being a lack of willingness to embrace this challenge but yes more needs to be done and I think it's critical that solutions are volunteered in the hope that some of same may find expression.